EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ CORPORATION
AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into as of November 1, 1999, by and between ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corporation f/k/a
Divot Golf Corporation f/k/a Brassie Golf Corporation, a Delaware corporation
(the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as Vice President ("Executive").
WHEREAS, the Company and Executive desire to enter into this Agreement to
assure the Company of the services of the Executive and to set forth the
respective rights and duties of the parties hereto; and
WHEREAS, the Company: (i) is presently in the business of providing
Internet travel, entertainment and related access services over the Internet
through its ownership and management of various proprietary and technological
holdings, licensing rights, subscription agreements and other related services;
and (ii) intends to invest its available resources in one or more new business
ventures (such activities, present and future, being hereinafter referred to as
the "Business").
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
terms and conditions set forth herein, the Company and Executive agree as
follows:
ARTICLE I
Employment
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1.1 Employment and Title: The Company hereby employs Executive and Executive
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hereby accepts such employment, as Vice Chairman, Vice President and
Secretary of the Company, all upon the terms and conditions set forth
herein.
1.2 Services: During the Term (as hereinafter defined) hereof, Executive agrees
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to perform diligently and in good faith the duties of Vice Chairman, Vice
President and Secretary of the Company under the direction of the Board of
Directors of the Company (the "Board of Directors") or the Executive
Committee of the Board of Directors (the "Executive Committee"). Executive
agrees to devote his best efforts and substantially all of his full
business time, energies and
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abilities to the services to be performed hereunder and for the exclusive
benefit of the Company. Executive shall be vested with such authority as is
generally commensurate with the position of Senior Corporate Counsel of the
Company, as further outlined below.
1.3 Location: The principal place of employment and the location of Executive's
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principal offices shall be in the States of Florida, Georgia New York;
provided, however, Executive shall form time to time temporarily perform
outside of the States of Florida, Georgia and New York, such services as
are reasonably required for the proper execution of his duties under this
Agreement.
1.4 Representations: Each party represents and warrants to the other that he/it
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has full power and authority to enter into and perform this Agreement and
that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement
to which he/it is a party or under which he/it is bound. Each party
represents that no consent or approval of any third party is required for
his/its execution, delivery and performance of this Agreement or that all
consents or approvals of any third party required for his/its execution,
delivery and performance of this Agreement have been obtained.
1.5 Sole Discretion: As the term "sole discretion" is used in this Agreement,
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unless otherwise defined, it will be interpreted as the exercise of
reasonable discretion applying normal business practices to a contractual
relationship between a company and its chairman and chief executive
officer.
ARTICLE II
Term
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2.1 Term: The term of Executive's employment hereunder (the "Term") shall
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commence as of the date hereof (the "Commencement Date") and shall continue
through the fifth anniversary of the Commencement Date (the "Scheduled
Termination Date") unless earlier terminated pursuant to the provisions of
this Agreement.
2.2 Renewal: This Agreement shall be renewed for successive one year terms
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unless either party hereto provides written notice of non-renewal at least
sixty (60) days prior to the Scheduled Termination Date of each such term.
Notwithstanding the foregoing, each renewal hereof shall constitute a
separate and distinct agreement. If notice of non-renewal is given by
either party, all terms of this Agreement shall remain in full force and
effect until the earlier of the following (i) a new employment agreement is
entered into by the parties, or (ii)
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employment is terminated under the terms and conditions in Article VII
hereof.
ARTICLE III
Compensation
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3.1 Base Salary: As compensation for the services to be rendered by Executive,
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the Company shall pay Executive, during the Term of this Agreement, an
annual base salary equal to Two Hundred Twenty Five Thousand and 00/100
Dollars ($225,000.00), which base salary shall accrue monthly (prorated for
periods less than a month) and shall be paid in equal bimonthly
installments, in arrears. The base salary will be reviewed annually, or
more frequently, as appropriate, by the Board of Directors or the
Compensation Committee of the Board of Directors, as the case may be, in
its sole discretion, provided that the annual base salary shall not be
decreased below Two Hundred Thousand and 00/100 Dollars ($225,000.00).
3.2 Vacation & Holidays As further compensation for services to be rendered by
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the executive, the executive shall accrue twenty one days of annual paid
vacation or leave and shall enjoy all regular state and federal holidays.
3.3 Stock Options: The Company shall issue Executive options to purchase Five
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Million (5,000,000) shares of the Company's common stock at a per share
market value option price as soon as practicable after the date on which
the Company's proposals regarding a Stock Option Plan commencing the year
2000 and an increase in the Company's authorized common stock are adopted
by the Company's shareholders, if necessary. The Options shall not be
subject to any vesting period. All options shall have an exercise period of
five (5) years. The number and price of the option shares shall be subject
to equitable adjustment in the event the Company's 1-for-20 reverse stock
split is adopted by the Company's shareholders.
(a) Default Provision In the event the company defaults on said severance
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and the Executive and the company are unable to arrive at a mutually
agreed upon extension the Executive may elect a conversion to
preferred stock at a base of a twenty five percent (25%) discount to
market on a ten day trailing average.
(b) No Dilution or Impairment: ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corporation f/k/a Divot
-------------------------
Golf Corporation hereby agrees that it shall not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer
of capital stock or assets, consolidation, merger, dissolution, issue
or sale of securities or any other
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voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Agreement, but will at all times in good
faith assist in the carrying out of all such terms and in the taking
of all such action as may be necessary or appropriate in order to
protect the rights of Executive against dilution or other impairment
of the Shares issued hereunder.
(c) Anti-Dilution Provision The effects of anti-dilution pursuant to the
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terms and conditions as contained herein provide that the company
shall be entitled to issue additional shares of its capital stock in
connection with mergers and acquisitions and financing in the ordinary
course of business; provided, however, that in case the Company shall,
at any time after the date hereof, reorganize, recapitalize, issue or
sell any shares of Common Stock or issue warrants, options or other
securities convertible into, or exercisable or exchangeable for,
shares of Common Stock ("Convertible Securities") for a consideration,
or in the case of the issuance of Convertible Securities, an exercise
price or conversion price per share less than the Fair Market Value or
the Exercise Price in effect immediately prior to the issuance or sale
of such securities, then forthwith upon such issuance or sale, the
Exercise Price shall be reduced to the price determined by dividing
(I) an amount equal to the sum of (a) the number of shares of Common
Stock outstanding (after giving effect to the conversion or exercise
of all Convertible Securities) immediately prior to such issuance or
sale multiplied by the then existing Exercise Price and (b) the
aggregate amount of the consideration, if any, received by the Company
upon such issuance or sale by (ii) the total number of shares of
Common Stock outstanding (after giving effect to the conversion or
exercise of all Convertible Securities) immediately after such
issuance or sale. In no event shall the Exercise Price be adjusted
pursuant to this computation. In the event of a stock split, stock
divided, or other recapitalization pursuant to which the number of
outstanding shares of capital stock of the Company shall increase, the
number of shares covered by any unexercised portion of this Option and
the related Exercise Price per share shall be adjusted
proportionately. In the event of a combination or other
recapitalization pursuant to which the number of outstanding shares of
capital stock of the Company shall be reduced, the number of shares
covered by any unexercised portion of this Option and the related
Exercise Price per share shall not be subject to adjustment and shall
remain as in effect prior to such combination or recapitalization.
(d) Executive shall be entitled to receive: (i) a lump sum payment
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equal to the sum of the present value of 100% of Executive's base
salary for the balance of the term of this Agreement; and (ii) a lump
sum severance payment in the amount of Nine Hundred Thousand Dollars
($900,000.00) (collectively, the "Severance Payments") which shall be
paid by the Company within sixty (60) days of the date of termination.
In addition, in the event of a termination without cause for any
reason other than death, Executive shall be entitled to receive the No
renewal Payment (as defined in Section 7.7);
(e) Right of Lien Executive shall be issued a UCC 1 which shall be
recorded by the company in the amount of Nine Hundred Thousand Dollars
($900,000.00) (collectively, the "Severance Payments") for the purpose
of security in the event of default under the provisions of this
agreement. Upon payment in full of all shares and money Executive
shall release said lien.
(f) Except as provided in Article XI, this Agreement shall thereupon be of
no further force or effect. Any amounts due from Company pursuant
above and not paid to Executive as and when due shall accrue interest
at the prime rate of interest as established from time to time by
Chase Manhattan Bank of New York. Company may purchase insurance to
cover all or any part of its obligations set forth in this Section,
and Executive agrees to take a physical examination to facilitate the
purchase of such insurance.
3.3 Incentive Compensation: The Company shall pay Executive, during the Term of
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this Agreement, an annual performance/incentive bonus which shall be
calculated as follows:
Fiscal Year
Revenue Bonus
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$0 - 2,000,000 Five Percent (5%) of Base Salary
$2,000,00 to $5,000,000 Fifteen Percent (15%) of Base Salary
$5,000,00 to $10,000,000 Thirty Percent (30%) of Base Salary
In excess of $10,000,001 Fifty Percent (50%) of Base Salary
Sale of Company Five Percent of the Purchase Price
Capital Raised Two Percent of all Capital Raised
3.4 Benefits: Executive shall be entitled, during the Term hereof, to the same
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medical, hospital dental and life insurance coverage and benefits as are
available to the Company's most senior executive officers on the
Commencement Date.
3.5 Withholding: Any and all amounts payable under this Agreement.
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including, without limitation, amounts payable under this Article Ill and
Article VII, are subject to withholding for such federal, state and local
taxes as the Company, in its reasonable judgment, determines to be required
pursuant to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses, and Insurance
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4.1 Working Facilities and Expenses: Executive shall be furnished with an
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office at the principal executive offices of the Company, or at such other
location as agreed to by Executive and the Company, and other working
facilities and secretarial and other assistance suitable to his position
and reasonably required for the performance of his duties hereunder. The
Company hereby agrees to reimburse Executive, subject to the provisions of
this Section 4.1, all of the costs of Executive's maintaining a residence
and office in New York. The Company shall promptly reimburse Executive for
all of Executive's reasonable expenses incurred while employed, and
performing his duties under and in accordance with the terms and conditions
of this Agreement, subject to Executive's full and appropriate
documentation, including, without limitation, receipts for all such
expenses in the manner required pursuant to Company's policies and
procedures and the Internal Revenue Code of 1986, as amended (the "Code"),
and applicable regulations as are in effect from time to time.
4.2 Insurance: The Company may secure in its own name or otherwise, and at its
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own expense, life, disability, and other insurance covering Executive or
Executive and others, and Executive shall not have any right, title or
interest in or to such insurance other than as expressly provided herein.
Executive agrees to assist the Company in procuring such insurance by
submitting to the usual and customary medical and other examinations to be
conducted by such physicians(s) as the Company or such insurance company
may designate and by signing such applications and other written
instruments as may be required by any insurance company to which
application is made for such insurance.
ARTICLE V
Illness or Incapacity
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5.1 Right to Terminate: If, during the Term of this Agreement, Executive shall
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be unable to perform in all material respects his duties hereunder for a
period exceeding six (6) consecutive months by reason of illness or
incapacity, this Agreement may be terminated by the Company in its sole
discretion pursuant to Section 7.2 hereof.
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5.2 Right to Replace: If Executive's illness or incapacity, whether by physical
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or mental cause, renders him unable for a minimum period of ninety (90)
consecutive calendar days to carry out his duties and responsibilities as
set forth herein, the Company shall have the right to designate a person to
replace Executive temporarily in the capacity described in Article I
hereof; provided, however, that if Executive returns to work from such
illness or incapacity within the six (6) month period following his
inability due to such illness or incapacity, he shall be entitled to be
reinstated in the capacity described in Article I hereof with all rights,
duties and privileges attendant thereto.
5.3 Rights Prior to Termination: Executive shall be entitled to his full
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remuneration and benefits hereunder during such illness or incapacity
unless and until an election is made by the Company to terminate this
Agreement in accordance with the provisions of this Article V.
5.4 Determination of illness or Incapacity: For purposes of this Article V. the
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term "illness or incapacity" shall mean Executive's inability to perform
his duties hereunder substantially on a full-time basis due to physical or
mental illness as determined by the Board of Directors in accordance with
the Company's long-term disability insurance policy or, in the event
Company does not have a long-term disability insurance policy in effect, in
accordance with the following procedure: Executive and the Company each
shall designate a physician who shall jointly select a third physician and
the three (3) physicians selected would then determine whether or not any
illness or incapacity is such as to prevent Executive from performing his
duties hereunder.
5.5 Executive's Right of Designation: Nothwithstanding Paragraph 5.2 Executive
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shall have right to and be entitled to temporarily designate his
replacement in the event of incapacity for a period not to exceed an
additional six months of illness as defined in paragraph 5.1.
ARTICLE VI
Confidentiality
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6.1 Confidentiality: During the Term of this Agreement and thereafter,
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Executive agrees to maintain the confidential nature of the Company's trade
secrets, including, without limitation, development ideas, acquisition
strategies and plans, financial information, records, "know-how", methods
of doing business, customer, supplier and distributor lists and all other
confidential information of the Company.
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Executive shall not use (other than in connection with his employment), in
any way whatsoever, such trade secrets except as authorized in writing by
the Company. Executive shall, upon the termination of his employment,
deliver to the Company any and all records, books, documents or any other
materials whatsoever (including all copies thereof) containing such trade
secrets, which shall be and remain the property of the Company.
6.2 Non-Removal of Records: All documents, papers, materials, notes, books,
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correspondence, drawings and other written and graphic records relating to
the Business of the Company which Executive shall prepare or use, or come
into contact with, shall be and remain the sole property of the Company.
ARTICLE VII
Termination
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7.1 Termination For Cause: This Agreement and the employment of Executive may
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be terminated by the Company for "Just Cause" or "Proper Cause" and only in
any of the following circumstances:
(a) Just Cause: "Just Cause" shall mean that Executive has been judicially
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convicted or has pleaded nolo contendere to any one of the following
offenses: (i) Executive has been judicially determined to have
committed any fraud, theft, misappropriation or similar act against
the Company or Executive has been judicially declared to have
misappropriated, or embezzled funds in connection with the Company's
business; or (ii) any felony that the Board determines is detrimental
to the Company's reputation or that otherwise interferes with
Executive's ability to perform his duties under this Agreement.
(b) Proper Cause: "Proper Cause" shall mean an Executive is in default in
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a material respect in the performance of Executive's obligations,
services or duties hereunder, which shall include, without limitation:
(i) Executive's willful disregard of the lawful written instructions
of the Executive Committee or the Board of Directors concerning the
performance of his duties within the scope hereof; (ii) Any conduct of
the Executive which is materially inconsistent with the published
policies of the Company, as promulgated from time to time and which
are generally applicable to all senior executives; or (iii)
Executive's breach of any other material provision of this Agreement,
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provided, however, that Executive shall be given written notice of
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such default and a reasonable opportunity to cure such default.
An event giving rise to termination of the Executive's employment, whether
for Just Cause or Proper Cause, shall henceforth be referred to as
"Termination Events."
7.2 Termination Procedure: In the event that the Board determines that a
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Termination Event has taken place with respect to the Executive, the Board
shall undertake the following procedure to terminate Executive's
employment:
(a) The Board shall present Executive with thirty (30) day's advance
written notice of Executive's Just Cause or Proper Cause termination,
and shall include with such notice a copy of the minutes of the
meeting of the Board that reference the Board's determination that a
Termination Event has taken place.
(b) Executive shall have thirty (30) days after his receipt of the Board's
written notice of Just Cause or Proper Cause termination in which to
deliver to the Board a written objection to such termination. Upon its
receipt of Executive's written objection, the Board will be required
to do the following:
(1) Within ten (10) day's of its receipt of Executive's written
objection, the Board shall convene a Special Meeting to review
such objection. Executive shall receive notice of, and shall
have the right to be present at any such meeting, and may
present evidence that serves to contradict the Board's
determination that a Termination Event has occurred. The Board
shall have five (5) days following such Special Meeting in
which to reverse its decision to terminate Executive. If the
Executive has not been informed of such reversal within such
five (5) day period, Executive shall have ten (10) days in
which to appeal the matter to binding arbitration.
(c) Arbitration Procedure: Should Executive elect to submit the Board's
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decision to binding arbitration, such arbitration shall take place
within thirty (30) days, in accordance with the American International
Commercial Arbitration Rules. The number of arbitrators shall be
three; the Board shall choose one arbitrator, the Executive shall
choose one arbitrator, and both arbitrators shall choose a third
arbitrator. The place of arbitration shall be New York City, New York,
and the language of the arbitration
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shall be English. No discovery shall be permitted in such dispute, other
than exchange of relevant documents ordered by the arbitrators. The
maximum number of days of hearings in such arbitration shall be 3, all of
which shall occur consecutively. The arbitrators' decision shall be
limited to whether a Just Cause or Proper Cause termination is justified
under the circumstances. Such decision shall be binding upon all parties.
7.3.1 Executive to Remain in Position: Notwithstanding any other provision of
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this Agreement to the contrary, should Executive object to a Just Cause or
Proper Cause Termination Notice, he shall remain in his position, with the
same duties and for the same compensation as set forth in this Agreement,
during the course of such objection, until such time as Executive accepts
the Board's decision or a final decision is rendered with respect to the
matter or that the has been determined through arbitration or appeal.
(a) A Termination for cause delivered to Executive pursuant to this
Agreement shall effective as of the date set forth in a written
notice of termination delivered to Executive (which shall be no less
than thirty (30) days following the delivery of written notice), but
shall not be earlier than the date such written notice is delivered
to Executive.
7.4 Termination Without Cause: This Agreement and the employment of the
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Executive may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto; or
(b) At the election of the Company by its giving not less than sixty
(60) days written notice to Executive in the event of an illness or
incapacity described in Section 5.1; or
(c) At the election of the Executive by his giving not less than sixty
(60) days written notice to the Company; or
(d) Upon the Scheduled Termination Date or on the last day of any
renewal term in the event of non-renewal of this Agreement; or
(e) Upon Executive's death.
A Termination Without Cause under Section 7.4(b), (c) or (d) hereof
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shall be effective upon the date set forth in a written notice of
termination delivered hereunder, which shall be not less than sixty (60)
days nor more than one hundred twenty (120) days after the giving of such
notice. A Termination Without Cause under Section 7.4(a), (d) or (e)
hereof shall be automatically effective upon the date of mutual agreement,
or the Scheduled Termination Date or the last day of any renewal term, or
the date of death of the Executive, as the case may be.
7.5 Effect of Termination For Cause: If Executive's employment is terminated
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For Cause:
(a) Executive shall be entitled to accrued base salary under Section 3.1
Through the date of termination which shall be paid by the Company
within sixty (60) days of the date of termination;
(b) Executive shall be entitled to reimbursement for expenses accrued
through the date of termination in accordance with the provisions of
Section 4.1 hereof which shall be paid by the Company within sixty
(60) days of the date of termination; and
(c) Except as provided in Article XI, this Agreement shall thereupon be
of no further force and effect.
7.6 Effect of Termination Without Cause: If Executive's employment is
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terminated Without Cause except pursuant to Section 7.4(c) or (e) hereof:
(g) Executive shall be entitled to accrued base salary under Section 3.1
through the date of termination which shall be paid by the Company
within sixty (60) days of the date of termination;
(h) Executive shall be entitled to reimbursement for expenses accrued
through the Scheduled Termination Date in accordance with the
provisions of Section 4.1 hereof which shall be paid by the Company
within sixty (60) days of the date of termination;
(i) Default Provision In the event the company defaults on said
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severance and the Executive and the company are unable to arrive at
a mutually agreed upon extension the Executive may elect a
conversion to preferred stock at a base of a twenty five percent
(25%) discount to market on a ten day trailing average.
(j) No Dilution or Impairment: ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corporation f/k/a Divot
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Golf Corporation hereby agrees that it shall not, by
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amendment of its Certificate of Incorporation or through any
reorganization, transfer of capital stock or assets, consolidation,
merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Agreement, but will at all
times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate
in order to protect the rights of Executive against dilution or
other impairment of the Shares issued hereunder.
(k) Anti-Dilution Provision The effects of anti-dilution pursuant to the
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terms and conditions as contained herein provide that the company
shall be entitled to issue additional shares of its capital stock in
connection with mergers and acquisitions and financing in the
ordinary course of business; provided, however, that in case the
Company shall, at any time after the date hereof, reorganize,
recapitalize, issue or sell any shares of Common Stock or issue
warrants, options or other securities convertible into, or
exercisable or exchangeable for, shares of Common Stock
("Convertible Securities") for a consideration, or in the case of
the issuance of Convertible Securities, an exercise price or
conversion price per share less than the Fair Market Value or the
Exercise Price in effect immediately prior to the issuance or sale
of such securities, then forthwith upon such issuance or sale, the
Exercise Price shall be reduced to the price determined by dividing
(I) an amount equal to the sum of (a) the number of shares of Common
Stock outstanding (after giving effect to the conversion or exercise
of all Convertible Securities) immediately prior to such issuance or
sale multiplied by the then existing Exercise Price and (b) the
aggregate amount of the consideration, if any, received by the
Company upon such issuance or sale by (ii) the total number of
shares of Common Stock outstanding (after giving effect to the
conversion or exercise of all Convertible Securities) immediately
after such issuance or sale. In no event shall the Exercise Price be
adjusted pursuant to this computation. In the event of a stock
split, stock divided, or other recapitalization pursuant to which
the number of outstanding shares of capital stock of the Company
shall increase, the number of shares covered by any unexercised
portion of this Option and the related Exercise Price per share
shall be adjusted proportionately. In the event of a combination or
other recapitalization pursuant to which the number of outstanding
shares of capital stock of the Company shall be reduced, the number
of shares covered by any unexercised portion of this Option and the
related Exercise Price per share shall not be subject to adjustment
and shall remain as in effect prior to such
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combination or recapitalization.
(l) Executive shall be entitled to receive: (i) a lump sum payment equal
to the sum of the present value of 100% of Executive's base salary
for the balance of the term of this Agreement; and (ii) a lump sum
severance payment in the amount of Nine Hundred Thousand Dollars
($900,000.00) (collectively, the "Severance Payments") which shall
be paid by the Company within sixty (60) days of the date of
termination. In addition, in the event of a termination without
cause for any reason other than death, Executive shall be entitled
to receive the No renewal Payment (as defined in Section 7.7);
(m) Right of Lien Executive shall be issued a UCC 1 which shall be
recorded by the company in the amount of Nine Hundred Thousand
Dollars ($900,000.00) (collectively, the "Severance Payments") for
the purpose of security in the event of default under the provisions
of this agreement. Upon payment in full of all shares and money
Executive shall release said lien.
(n) Except as provided in Article XI, this Agreement shall thereupon be
of no further force or effect. Any amounts due from Company pursuant
above and not paid to Executive as and when due shall accrue
interest at the prime rate of interest as established from time to
time by Chase Manhattan Bank of New York. Company may purchase
insurance to cover all or any part of its obligations set forth in
this Section, and Executive agrees to take a physical examination to
facilitate the purchase of such insurance.
7.7 Non-Renewal of Agreement: In the event that Company shall not have made a
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Qualifying Offer (as hereinafter defined) to Executive on or before the
Scheduled Termination Date of this Agreement, and no other agreement
between Executive and Company relating to the extension of Executive's
employment shall have been entered into by the Scheduled Termination Date,
Executive shall receive (after having given the Company written notice of
its failure to deliver a Qualifying Offer, and after not having received
such Qualifying Offer from the Company within five (5) business days from
the delivery of such notice to the Company) a contract termination payment
of $900,000.00 (the "Nonrenewal Payment") from the Company. Such
Nonrenewal Payment shall be due within sixty (60) days following the
Scheduled Termination Date of Executive's employment.
(a) Qualifying Offer: The term "Qualifying Offer" shall mean a written
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offer of employment to Executive which: (i) shall be for a period of
not less than five years from the Scheduled Termination
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Date, (ii) shall include the types of compensation contained in this
Agreement, (iii) shall constitute a reasonable offer taking into
account Executive's compensation set forth in this Agreement; (iv)
the Company's financial and operating performance during the term of
this Agreement; (v) any other then-current circumstances relevant to
the determination of Executive's compensation by Company for the
period specified in (i); (vi) shall not contain any terms or
provisions which reduce Executive's title or duties as stated
herein, and (vii) shall state that it is irrevocable for 30 days
from the date of delivery thereof.
(b) In the event that the parties shall disagree as to whether or not an
offer timely made by Company in accordance with the foregoing
constitutes a Qualifying Offer, the parties shall submit such
disagreement to arbitration by a qualified individual executive
compensation expert of national reputation, who shall not have had
dealings with either party during the preceding five (5) years.
7.8 Constructive Termination: Prior to the expiration of the Term, Executive
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shall have the right to terminate his employment under this Agreement,
upon thirty (30) days' notice to the Company given within sixty (60) days
following the occurrence of any of the following events ("Constructive
Termination Events"); provided, however, that the Company shall have
twenty (20) days after the date such notice has been given to the Company
in which to cure the conduct or cause specified in such notice:
(a) A material breach by the Company of a material obligation of the
Company under this Agreement;
(b) A failure of the Company to pay when due to the Executive any annual
base salary, annual bonus or other earned bonus or awards or
commissions referred to in this Agreement;
(c) The relocation of the Executive's principal place of employment to a
location not within a 30 mile radius of such place of employment on
the Effective Date;
(d) A material reduction by the Company of the Executive's duties or
responsibilities;
(e) The failure of the Company to obtain an agreement reasonably
satisfactory to the Executive from any successor to assume and
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agree to perform this Agreement, or, if the business for which the
Executive's services are principally performed is sold or
transferred, the failure of the Company to obtain such an agreement
from the purchaser or transferee of such business; or
(f) The Company shall fail to grant Executive's stock options for
provided for herein.
Following a Constructive Termination Event and proper notice by the
Executive as set forth herein, Executive may terminate his employment with
the Company and shall be entitled to receive the Severance Payments and
the Nonrenewal Payment as set forth in Sections 7.6 and 7.7 of this
Agreement. In the event the Executive terminates Executive's employment as
a result of a Constructive Termination Event and the Company objects in
writing to the Executive's determination that there was Constructive
Termination Event within (30) days after Executive has notified the
Company of the same, the matter shall be resolved by arbitration in
accordance with the provisions of Section 7.2(c). If the Company fails to
object to any such determination of Constructive Termination in writing
within such thirty (30) day period, it shall be deemed to have waived its
right to object to that determination. If such arbitration determines that
there was not proper Constructive Termination, such termination shall be
deemed to be a termination pursuant to subsection 7.4(c).
7.9 Certain Payments: The parties believe that the payments to Executive
----------------
hereunder do not constitute "Excess Parachute Payments" under Section 28OG
of the Code. Notwithstanding such belief, if any payment or benefit under
this Agreement is determined to be an `Excess Parachute Payment," Company
shall pay Executive an additional amount (the "Tax Payment") such that (i)
the excess of all Excess Parachute Payments (including payments under this
sentence) over the sum of excise tax thereon under Section 4999 of the
Code and income tax thereon under Subtitle A of the Code and under
applicable state law is equal to (ii) the excess of all Excess Parachute
Payments (excluding payments under this sentence) over income tax thereon
under Subtitle A of the Code and under applicable state law.
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ARTICLE VIII
Non-Competition and Non-Interference
------------------------------------
8.1 Non-Competition: Executive may advise, lend money, manage, control,
---------------
trade, sell, lease, license or otherwise own technology in any private
-------
company, however, Executive's ownership interest may not directly or
------- -------
indirectly exceed 20% of the total issued and outstanding shares of any
one company whether said company is or is not in direct competition with
the Company. Executive shall be permitted to own up to 5% of the issued
and outstanding shares of capital stock of any corporation which has a
class of equity securities registered under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
8.2 Non-Interference: Executive agrees, that during the Term hereof and, in
----------------
the case of a Termination For Cause or a Termination Without Cause
pursuant to Section 7.2(d) hereof, for a period of one (1) year
thereafter, Executive will not, directly, indirectly or as an agent on
behalf of or in conjunction with any person, firm, partnership corporation
or other entity, induce or entice any employee of the Company to leave
such employment or cause anyone else to do so.
8.3 Severability: If any covenant or provision contained in this Article VIII
------------
is judicially determined to be void or unenforceable in whole or in part,
it shall not be deemed to affect or impair the validity of any other
covenant or provision. If, in any arbitration or judicial proceeding, a
tribunal shall refuse to enforce all of the separate covenants deemed
included in this Article VIII, then such unenforceable covenants shall be
deemed eliminated from the provisions hereof for the purpose of such
proceedings to the extent necessary to permit the remaining separate
covenants to be enforced in such proceedings.
ARTICLE IX
Remedies
--------
9.1 Equitable Remedies: Executive and the Company agree that the services to
------------------
be rendered by Executive pursuant to this Agreement, and the rights and
interests granted and the obligations to be performed by Executive to the
Company pursuant to this Agreement, are of a special, unique,
extraordinary and intellectual character, which gives them a peculiar
value, the loss of which cannot be reasonably or
16
adequately compensated in damages in any action at law, and that a breach
by Company of any of the terms of this Agreement will cause the Executive
great and irreparable injury and damage. The parties hereby expressly
agree that the Executive shall be entitled to the remedies of injunction,
specific performance, and other equitable relief to prevent a breach of
Articles VI and VIII of this Agreement, both pendente lite and
permanently, as such breach would cause irreparable injury to Executive
and a remedy at law would be inadequate and insufficient. Therefore,
Executive may in addition to pursuing other remedies, obtain an injunction
from any court having jurisdiction in the matter restraining any further
violation.
9.2 Rights and Remedies Preserved: Nothing in this Agreement shall limit any
-----------------------------
right or remedy the Company or Executive may have under this Agreement or
pursuant to them, for any breach of this Agreement by the other party. The
rights granted to the parties herein are cumulative and the election of
one shall not constitute a waiver of such party's right to assert all
other legal remedies available under the circumstances.
ARTICLE X
Miscellaneous
-------------
10.1 No Waivers: The failure of either party to enforce any provision of this
----------
Agreement shall not be construed as a waiver of any such provision nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
10.2 Notices: Any notice to be given to the Company and Executive under the
-------
terms of this Agreement may he delivered personally, by telecopy, telex or
other form of written electronic transmission, or by registered or
certified mail, postage prepaid, and shall be addressed as follows:
If to the Company: OrbitTravel .com Corporation
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Legal Committee
With a Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to Executive: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (1) when personally
delivered, (ii) when telecopied, telexed or transmitted by other form of
written electronic transmission (upon confirmation of receipt) or (iii) on
the third day after it is mailed by registered or certified mail, postage
prepaid, as provided herein.
10.3 Severability: The provisions of this Agreement are severable and if any
------------
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
10.4 Successors and Assigns: The rights and obligations of the Company under
----------------------
this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, including the survivor upon any
merger, consolidation, share exchange, or combination of the Company with
any other entity. Executive shall not have the right to assign, delegate
or otherwise transfer any duty or obligation to be performed by him
hereunder to any person or entity.
10.5 Entire Agreement: This Agreement supersedes all prior and contemporaneous
----------------
agreements and understandings between the parties hereto, oral or written,
and may not be modified or terminated orally- No modification, termination
or attempted waiver shall be valid unless in writing, signed by the party
against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties
hereto and their counsel. The parties agree that no prior drafts of this
Agreement shall be admissible as evidence (whether in any arbitration or
court of law) in any proceeding which involves the interpretation of any
provisions of this Agreement.
10.6 Governing Law: This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Florida without
reference to the conflict of law principles thereof.
10.7 Section Headings: The section headings contained herein are for the
----------------
purposes of convenience only and are not intended to define or limit the
contents of said sections.
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10.8 Attorneys Fees: In the event of any litigation arising out of this
--------------
Agreement, the prevailing party shall be entitled to recover from the non-
prevailing party reasonable attorneys fees and costs incurred.
10.9 Further Assurances: Each party hereto shall cooperate and shall take such
------------------
further action and shall execute and deliver such further documents as may
be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
10.10 Gender: Whenever the pronouns "he" or "his" are used herein they shall
------
also be deemed to mean "she'' or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in
the plural and words in the plural shall be read and construed as though
in the singular in all cases where they would so apply.
10.11 Counterparts: This Agreement may be executed in counterparts, all of
------------
which taken together shall be deemed one original.
10.12 Survival: The provisions of Articles VI, VII, VIII, IX and X, of this
--------
Agreement shall survive the termination of this Agreement whether upon, or
prior to, the Scheduled Termination Date hereof.
ARTICLE XI
Survival
--------
11.1 Survival. The provisions of Articles VI, VII, VIII, IX and X, of this
Agreement shall survive the termination of this Agreement whether upon, or prior
to, the Scheduled Termination Date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corporation
a Delaware Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title Chairman & CEO
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Executive
19